Southall-Norman: RATING MUSCULOSKELETAL DISABILITIES; 38 C.F.R. § 4.59
/Southall-Norman v. McDonald, docket no. 15-1357 (Dec. 15, 2016)
HELD: VA regulations require the award of a minimum compensable disability rating where there is “evidence of an actually painful, unstable, or malaligned joint or periarticular region and the presence of a compensable evaluation in the applicable DC [Diagnostic Code],” regardless of whether that DC is “predicated on range of motion measurements.”
SUMMARY: Veteran Crystal D. Southall-Norman was granted service connection for bilateral hallux valgus and hemorrhoids, rated 0% for both conditions. She appealed for compensable ratings, and the Board granted 10% for the hemorrhoid condition and remanded the bilateral foot issue for another examination. She appealed the issue of the 10% hemorrhoid rating to the Court, and the parties entered into a Joint Motion for Remand stipulating that the Board failed to consider whether she was entitled to a separate compensable rating based on loss of sphincter control. The JMR directed the Board to address Ms. Southall-Norman’s reports of fecal leakage and consider the credibility and probative value of those reports in light of the fact that the relevant Diagnostic Code (38 C.F.R. § 4.114, DC 7332) does not require that such leakage “be confirmed by objective findings.”
Meanwhile, Ms. Southall-Norman was afforded another C&P examination for her feet. The examiner diagnosed bilateral pes planus and opined that this condition was related to her service-connected bilateral hallux valgus. The RO granted service connection for bilateral pes planus, rated 50% disabling under 38 C.F.R. § 4.71a, DC 5276 (flatfoot, acquired), effective June 2, 2014, the date of the C&P examination.
The appeal returned to the Board, which denied a compensable rating for her foot condition prior to the date of the C&P examination, under either DC 5276 (flatfoot) or 5280 (hallux valgus), because her symptoms were only mild or moderate symptoms during that time. The Board did not mention 38 C.F.R. § 4.59 (“painful motion”) in evaluating her foot condition. The Board also determined that she was not entitled to a separate rating for sphincter impairment because her reports of fecal leakage were “inconsistent” and “contradicted by the medical evidence of record.” The Board found that she “did not always differentiate between fecal leakage and other types of leakage,” and determined that her reports of fecal leakage “were insufficient to demonstrate constant slight or occasional moderate fecal leakage required for a compensable evaluation under DC 7332.”
In this present decision, the Court first addressed the foot condition and the appellant’s argument that the Board failed to discuss 38 C.F.R. § 4.59. The Secretary argued that the Board was not required to discuss § 4.59 because this regulation only applies when evaluating a joint disability under a DC based on range of motion. Because the relevant DCs in this case - DCs 5276 and 5280 - do not mention range of motion, the Secretary asserted that the Board need not discuss § 4.59. In her reply brief, Ms. Southall-Norman argued that the Secretary’s interpretation was inconsistent with the plain language of the regulation, which did not expressly limit itself to conditions based on range of motion. Alternatively, she argued that the Court should not defer to the Secretary’s interpretation because the Secretary had taken contrary positions in other cases.
The Court examined the language of the regulation and held that the “plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under DCs predicated on range of motion measurements.” The Court added:
§ 4.59 does not, as the Secretary contends, condition the award of a minimum compensable evaluation for a musculoskeletal disability on the presence of range of motion measurements in that DC; rather, it conditions that award on evidence of an actually painful, unstable, or malaligned joint or periarticular region and the presence of a compensable evaluation in the applicable DC.
The Court further determined that even if § 4.59 was ambiguous, the Court would not defer to the Secretary’s interpretation “because it does not reflect the agency’s considered view on the matter, as he has not consistently adhered to that interpretation.” To support this conclusion, the Court pointed to the Secretary's contrary position taken during oral argument on another case, as well as a number of single judge (i.e., nonprecendential) decisions.
Advocacy Note: The Court’s Rules allow for citation to nonprecedential authority “for the persuasive value of their logic and reasoning” and only if “no clear precedent exists on point and the party includes a discussion of the reasoning as applied to the instant case.” U.S.C.A.V.C. Rule 30(a).
With respect to a separate compensable rating for sphincter control, the Court determined that the Board did not adequately explain its rejection of Ms. Southall-Norman’s lay statements. More specifically, the Court rejected the Board’s credibility determination. The Court identified one of the “putative inconsistencies” noted by the Board and determined that it was consistent with her prior statement. The Court also found that the Board improperly questioned the credibility of Ms. Southall-Norman’s lay statements as inconsistent with a C&P examiner’s finding because the Board failed to acknowledge other evidence that was consistent with her statement. The Court held that “[a]lthough the Board is allowed to find a veteran not credible based on inconsistencies between medical evidence and lay evidence, . .. it must account for the potentially favorable material evidence of record when doing so.” The Court remanded both issues to the Board.
Advocacy Note: Although the primary holding of this case is that § 4.59 must be considered in evaluating all musculoskeletal disabilities – not just those predicated on range of motion – I found the Court’s review of the Board’s credibility determination to be refreshing. Instead of simply deferring to the Board’s “fact finding,” the Court carefully examined the evidence and rejected the Board’s determination that it was inconsistent with the appellant’s statements. The Court's language regarding the Board's duty to "account for potentially favorable material evidence of record" in making a credibility determination will be useful to advocates in cases where the Board appears to cherry-pick and/or mischaracterize the evidence of record.
